Nonimmigrant visas

1. Visitors (B-1 & B-2)

(a) Introduction

The B nonimmigrant visa category covers for business (B-1) and pleasure (B-2). Generally, stays in the United States in this category are brief, and involve such activities as touring, visiting family members, obtaining health care, or conducting business o behalf of an overseas employer. The trips are temporary and cannot involve employment in the United States or the undertaking of an academic study program (with a few limited exceptions).

(b) Duration of Stay

It is possible to obtain a period of admission of one year on initial entry to the United States. In addition, extensions of stay can be granted for no more than six months at a time. In practice, a business visitor (B-1) will be granted only a period of entry necessary to conduct his or her business. Most such visits are approved for less than three months, and only in unusual circumstances would be a stay of more than six months be granted. Tourists in the B-2 category are automatically given a period of entry of six months. A longer period than six months can be granted, but only under unusual circumstances.

(c) Requirements for classification in the B category

i) The alien is entering the U.S. for a limited duration.

ii) The alien intends to depart the U.S. at the expiration of his or her stay.

iii) While in the U.S., the alien maintains a foreign residence which he or she has no intention of abandoning.

iv) The alien has adequate financial arrangements to travel to, sojourn in, and depart from the U.S.

v) The alien will engage solely in legitimate activities relating to business or pleasure.

(d) Documents required for B-1 visa

i) Form OF-156, the standard nonimmigrant visa application

ii) Supporting letter from the employer or, if the applicant is an independent business person, from himself or herself.

iii) Supporting documentation establishing: a. The alien's nonimmigrant intent; b. The legitimate business activity in which the alien will engage in the United States.

iv) Passport of the visa applicant.

v) Photograph of the visa applicant (passport-sized).

vi) Application fee (if any).

(e) Documents required for a B-2 visa

Foreign nationals who need B-2 visas make their applications by presenting documentation to a U.S. consulate similar to that described for business visitors as B-1 visa. Rather than a supporting cover letter from the applicant's employer, however, the alien should submit a letter of invitation from a U.S. host, if applicable, and more substantial documentation of financial ability, such as an affidavit of support from a U.S. source.

2. Student visas (F-1 & M-1)

A) F-1 Visa

(a) Introduction

Foreign nationals may enter the United States as nonimmigrants in order to engage in academic studies in this country, subject to certain restrictions. These students, who can range from elementary school students to doctoral candidates and persons engaged in post-doctoral studies, are classified in the F visa category.

(b) Duration of Stay

Unlike most other nonimmigrants who are given a definite period of stay in the United States, foreign students are permitted to remain in the U.S. for the "duration of status." Duration of status means that a student remains in valid status during enrollment in any number of academic programs, plus any periods of authorized practical training, and a 60-day grace period to depart the U.S.

(c) Basic requirements for obtaining F-1 status

i) The alien must be enrolled in an "academic" education program, not a vocational-type program.

ii) The alien must be enrolled in a school approved by the Attorney General for the attendance of foreign students.

iii) The alien must be enrolled in a "full course of study" at the school.

iv) The alien must be proficient in English or be enrolled in English language courses leading to proficiency.

v) The alien must have sufficient funds available to him or her to support him or herself completely during the entire proposed course of study.

vi) The alien must maintain a residence abroad that he or she has no intention of abandoning and must intend to leave the U.S. upon completion of his or her studies.

(d) Documents required for F-1 visa

i) Form OF-156, the standard nonimmigrant visa application

ii) Form I-20 A-B issued by the student's school

iii) Supporting documentation regarding financial resources and the alien's nonimmigrant intent.

iv) Passport of the visa applicant

v) Photographs (2) of the visa applicant (if over 16 years of age)

vi) Application fee (if any).

B. M-1 Visa

(a) Introduction

An M-1 student is defined as an alien having a residence in a foreign country which he has no intention of abandoning who seeks to enter the U.S. temporarily and solely for the purpose of pursuing a full course of study at an established vocation or other recognized nonacademic institution (other than in a language training program) in the U.S. particularly designated by him and approved by the Attorney General, which institution shall have agreed to report to the Attorney General the termination of attendance of each nonimmigrant nonacademic student and if any such institution fails to make reports promptly the approval shall be withdrawn, and …the alien spouse and minor children of any such alien if accompanying him or following to join him .

(b) Acquiring M-1 Status

The procedures for obtaining M-1 status are parallel those for the F-1 student. The M-1 student must have been admitted into an authorized school, and the DSO must have issued the I-20 in the U.S.

3. Business visas (E & L)

A) E Visa

(a) Introduction

The E category is especially useful for business owners, mangers, and employees who need to remain in the United States for extended periods of time in order to oversee or work in an enterprise engaged in trade between the U.S. and a foreign state or that represents a major investment in the U.S. The E nonimmigrant category is available, however, only if a "treaty of commerce and navigation" or a "bilateral investment treaty" providing for nonimmigrant entries is in existence between the U.S. and the foreign state (except in the case of Sweden and Australia, which are covered without a treaty).

(b) Duration of Stay

Although an initial period of stay of one year is granted to persons coming to the U.S. in the E category, this period can be extended almost indefinitely-- as long as the alien affirms that he or she will leave the U.S. when the period of authorized stay, including unlimited extensions, ends.

(c) Rules applicable to the E category

i) A treaty must exist between the U.S. and Country X.

ii) Majority ownership or control of the investing or trading company must be held by nationals of Country X.

iii) Country X citizenship must be held by each employee or principal of the company who seeks E status under the treaty.

(d) Preparation of the papers to obtain E status

i) Nonimmigrant visa application (Form OF-156)

ii) Nonimmigrant treaty trader/investor visa application (Form OF-156E)

iii) Special E questionnaire (if required by that consulate).

iv) Supporting letter from the treaty enterprise or individual investor or trader.

v) Supporting documentation satisfying each of the elements of E treaty qualification.

vi) Passport and passport-sized photograph for the applicant and for each family member.

vii) Application fee (if required on the basis of reciprocity)

B) L-1 Visa

(a) Introduction

The L nonimmigrant visa category is one of the most useful tools available to international companies needing to bring foreign employees to the U.S. Under the 1990 Act, a new employment-based immigrant preference category was created for managers and executive who meet the L-1 standards for those employees. These aliens are considered "priority workers" in the first preference.

(b) Duration of Stay

An alien may be admitted to the U.S. in L-1 status for the period of time required by the employer, up to a maximum initial period of stay of three years. The total period of stay may reach seven years for L-1A managers and executives, and five years for L-1B specialized knowledge personnel. In a change from he law existing before the 1990 Act, additional periods of stay beyond these limits cannot be granted based on a showing of extraordinary circumstances.

(c) Basic requirements for obtaining L-1 status

i) The employee must have worked abroad for the overseas company for a continuous period of one year in the preceding three years.

ii) The company for which the employee has worked for a year abroad must be related to the U.S. company in a specific manner.

iii) The company must be a qualifying organization-one that is doing business in the United States and one other country during the whole period of the transfer.

iv) The employee to be transferred must have been employed abroad in an "Executive" or "Managerial" Position or a position involving "specialized knowledge."

v) The employee must be coming to the U.S. company to fill one of these capacities (executive, managerial, or specialized Knowledge)

vi) The employee must be qualified for the position by virtue of his or her prior education and experience.

vii) The L-1 alien must intend to depart the U.S. upon completion of his or her authorized stay (including extensions), but may also pursue permanent residence at the same time.

4. Employment based visas (H-1B, H-2B, H-3)

A) H-1B Visa

(a) Introduction

H-1B is a nonimmigrant visa for alien worker. It is also called Temporary Worker Status. This visa category is designed to allow alien workers work in the U.S. without first obtaining immigrant status. The maximum stay in H-1B status is six years. Three years work authorization will be granted for the first application. Incremental one year extension will be given afterwards.

(b) Basic requirements

To qualify for H-1B, what is called “specialty occupation”, one has to have a bachelor’s degree in a related specific academic field.

B) H-2B Visa

(a) Introduction

The H-2B visa category is used by U.S. companies temporarily to employ skilled or unskilled foreign nationals in nonagricultural positions for which the employer has a temporary need and for which qualified U.S. worker are unavailable. The company must intend to employ the foreign nationals for a temporary period and the employer's need for the skills possessed by the foreign nationals must also be temporary. In addition, the employer must seek a "labor certification" from the U.S. Department of Labor (DOL).

(b) Duration of Stay

The initial period of stay granted to the alien admitted to the U.S. in H-2B status is governed by the period of time that his or her temporary services are needed. This period must be reasonable in terms of the duties to be performed and cannot extend beyond an initial period of one year. Extensions of stay in increments of one year are possible, but the alien employee cannot be continuously employed in the U.S. for more than three years. The DOL has indicated its view that an employer's temporary need for job skills will usually be for a period of twelve months or less, with more extended needs occurring only in extraordinary circumstance.

(c) Basic requirements for obtaining H-2B status

i) H-2B status can be sought for a single alien, or a group of aliens, and the identity of the aliens must generally be known in advance, although substitution of aliens can occur in limited circumstances.

ii) Certification must be sought from DOL before the employer can hire a alien or a group of aliens.

iii) The employer's need for someone with the alien's skills must be temporary.

iv) The employer must intend to employ the alien temporarily.

v) The alien can be skilled or unskilled.

vi) The alien must intend to remain in the U. temporarily and must continue to maintain a foreign residence.

vii) An admission slot within the overall numerical cap of 66,000 H-2B admissions must be available for the alien.

viii) The employer must be willing to pay the reasonable cost of return transportation for the alien if he or she is dismissed prior to expiration of the authorized period of stay.

(d) Preparation of the papers to obtain H-2B status

i) The application for DOL certification

ii) A company letter and other pertinent documentation supporting the labor certification application.

iii) The H-2B petition, filed in duplicate on INS Form I-129 and H Supplement.

iv) A company letter supporting the H-2B petition.

C) H-3 Visa

(a) Introduction

The H-3 visa category is used by U.S. companies and institutions to bring foreign employees to the United States for a temporary period in order to participate in an established company training program. The H-3 visa category is therefore used as a means of increasing the foreign employee's knowledge and skills, thereby enhancing his or her worth to a company's foreign operations or other appropriate foreign operations.

(b) Duration of Training

Under INS rules, an outer limit of two years is placed on the training program's length. An extension of stay up to the two-year limit can be granted if he company originally requested less than the full two years.

(c) Basic requirements for obtaining H-3 status.

i) The alien worker, or a group of alien workers, must be entering the U.S. to participate in an existing company training program.

ii) The training of the foreign workers cannot be conducted or engaged in with the intention of eventual employment in the United States.

iii) The alien trainees cannot be employed to engage in productive employment that is other than incidental to the training program.

iv) The training program must provide knowledge or experience that is unavailable in the alien's country of residence.

v) The alien trainee must have need for the training and not merely seek to apply and enhance previously-acquired skills.

vi) The alien trainee must maintain a foreign residence which he or she has no intention of abandoning.

(d) Preparation of the papers to obtain H-3 status

i) The petition, in duplicate (INS Form I-129 and H Supplement).

ii) The company's letter to support the petition.

iii) Documents that support the letter and the petition, including a detailed description of the company's training program.

iv) Filing fee of $75.00, plus $10.00 for each alien included in the petition. The filing fee for a petition including five trainees is $125.00.

v) Form G-28, Notice of Appearance, when an attorney or representative is representing the employer and alien trainee in the H-3 petition. The G-28 must be signed by the employer/petitioner under INS rules.

5. Outstanding nonimmigrant professional visas (O & P)

A) O Visa

(a) Introduction

The O category is set aside for aliens of "extraordinary" ability in the sciences, arts, education, business, or athletics, certain aliens accompanying or assisting those aliens, and their family members.

(b) Duration of Stay

There is no explicit statutory limitation on the period of stay for O nonimmigrants; the initial period of stay can be approved for the time necessary to complete the event or activity or group of events or activities for which the nonimmigrant is admitted, up to a period of three years.

B) P Visa

(a) Introduction

The P category covers those entertainers and athletes who cannot qualify under extraordinary ability standard for the O category.

(b) Duration of Stay

Except for individual P-1 athletes, there is no explicit statutory limitation on the period of stay for P nonimmigrants; the initial period of stay can be approved for the time necessary for the specific competition, event, or performance, up to a period of one year. With regard to individual P-1 athletes, an initial period of stay can be approved for five years, up to a total of ten years.



6. Citizen fiance`e Visa (K-1)

(a) Introduction

The K nonimmigrant visa category permits the fiance(e) of a U.S. citizen petitioner to enter the U.S. for a 90-day period to marry the petitioner and apply for conditional permanent residence.


(b) Basic requirements

i) The parties have previously met in person within two years of the date of filing the petition, unless a waiver is granted.

ii) The parties have a bona fide intention to marry.

iii) The parties are legally able and actually willing to conclude a valid marriage in the U.S. within 90 days after the fiance(e)’s arrival.


7. Exchange Visitor Visa(J-1)

(a) Introduction

The J-1 visa category is used by foreign students, scholars, experts, medical interns and residents, "international visitors," and industrial and business trainees to enter the U.S. as "exchange visitors."


(b) Duration of Stay

The permissible period of stay for exchange visitors varies depending the exchange visitors category in which the visitor is admitted.


(c) Basic requirements for obtaining J-1 status

i) To enter the U.S., the alien must have plans to participate in a designated Exchange-Visitor Program.

ii) Certain categories of exchange visitors must spend an aggregate of two years following completion of their U.S. training program in the country of their nationality or last legal residence.

iii) The alien must maintain a foreign residence which he or she has no intention of abandoning.


(d) Documents required for J-1 visa

i) Form OF-156. A separate form is required for each family member.

ii) Form IAP-66 issued by the program sponsor.

iii) The visa applicant's passport ( and those of each family member).

iv) A photograph of the visa applicant (and one of each family member over 16 years of age).

vi) Application fee, if required